SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934.
Date of Report (Date of earliest event reported) September 6, 1996.
TENNEY ENGINEERING, INC.
(Exact name of registrant as specified in its charter)
New Jersey 1-4142 22-1323920
State or other (Commission File (IRS Employer
Jurisdiction of Number) Identification No.)
Incorporation)
1090 Springfield Road
Union, New Jersey 07083
(Address of Principal
Executive Offices) (Zip Code)
Registrant's Telephone Number, including area code: (908) 686-7870
Item 5 - Other Events
Tenney Engineering, Inc. (the "Company") formerly had
employees who were members of a union and the Company contributed
to a multi-employer pension plan for such employees in accordance
with a collective bargaining agreement based on monthly hours
worked. Due to the cessation of manufacturing operations at the
Company's Union, New Jersey manufacturing plant, the Company ceased
being a participant in the multi-employer pension plan in February
1993. Under the Multi-Employer Pension Plan Amendments Act of
1980, the Company may, under certain circumstances, become subject
to liabilities in excess of contributions made under its collective
bargaining agreement.
During the fourth quarter of 1993, the Company received a
letter from the Trustees of the Sheet Metal Workers National
Pension Fund ("Plan Trustees") alleging $529,743.28, principal, due
as withdrawal liability. Payments may be made in installment with
interest and the Plan Trustees demanded 18 quarterly payments of
$33,879.28 and a final payment of $32,797.59, with the initial
payment to be made by January 19, 1994. The Company made a
provision for this liability in its 1993 Consolidated Financial
Statements. The Plan Trustees' demand also stated that the amount
due was subject to adjustment for performance of the Plan during
1992.
The Company did not make the January 19, 1994 payment.
In December 1994 the Company received from the Plan Trustees
a modified calculation reducing the withdrawal liability to
$502,665 principal amount. The Plan Trustees demanded payment of
sixteen quarterly installments of $33,879.28 commencing January 19,
1994 and a seventeenth payment of $29,151.09.
The Company did not make any such payments.
On December 7, 1995 the Company was served with a Summons and
Complaint in an action filed in the U.S. District Court for the
Eastern District of Virginia, Alexandria Division (Case Number 95-
1609A) by the Plan Trustees ("Plaintiff"). A copy of the Complaint
was filed as Exhibit 99 to a report on Form 8-K for an event
occurring December 7, 1995 and reference is made to the Complaint
itself for the terms thereof and the relief demanded by the
Plaintiff.
The Company has negotiated with the Plaintiff the amount of
the liability and an installment payment schedule.
On September 6, 1996, the Company agreed to a settlement of
the matter proposed by the Plaintiff and it executed a Settlement
Agreement (the "Agreement") a copy of which is filed as Exhibit 99B
to this report. Among other matters, the Agreement provides that
the Company shall pay the Plaintiff $720,090.49 (the "Settled
Amount") on account of the withdrawal liability, statutory interest
and counsel fees, provided, however, that if the Company pays to
Plaintiff $397,330 plus interest scheduled to be paid $75,000 on or
before September 13, 1996 and sixty (60) monthly payments of
$6,613.09 over a five (5) year period commencing October 1, 1996,
Plaintiff will accept such reduced amount in full satisfaction of
the withdrawal liability. The Agreement contains various
representations and warranties by the Company. In the event that
the Company does not make timely payments or otherwise defaults
under the Agreement, the Settled Amount will be due to Plaintiff.
The foregoing is merely a summary of certain provisions of the
Agreement and reference is made to the Agreement itself for the
full terms and provisions thereof.
In conjunction with the Agreement, the Company has executed a
confession of judgment for the Settled Amount in the form annexed
to the Agreement, which may be filed by the Plaintiff in the event
the Company fails to make timely payments or otherwise defaults
under the Agreement.
At December 31, 1995 and at June 30, 1996, the Company had
reserved on its balance sheet the amount of $581,835.64 for the
withdrawal liability to Plaintiff. Payments to Plaintiff under the
Agreement, an initial payment of $75,000 and monthly payments of
$6,613.09 will be charged against this reserve when made. If the
Company does not default and if all payments are made in accordance
with the provisions of the Agreement, any balance in the reserve
will be recognized as forgiveness of indebtedness when payments are
completed.
In the event that payments to Plaintiff are not timely made or
in the event of any other default under the Agreement, Plaintiff
may enter judgment against the Company for the Settled Amount and
the Company would owe to Plaintiff an amount in excess of the
amount reserved for the withdrawal liability.
Item 7 - Financial Statements and Exhibits
(c) Exhibits
(99) (A) Complaint in action in the United States
District Court for the Eastern District of Virginia, Alexandria
Division entitled The Board of Trustees Sheet Metal Workers'
National Pension Fund, Plaintiff, v. Tenney Engineering, Inc.,
Defendant, Civil Action No. 95-1609A filed with the Registrant's
Report on Form 8-K for an event occurring on December 7, 1995.
(B) Settlement Agreement settling the action
referred to in Exhibit 99(A) among the Company, its subsidiaries,
and the Sheet Metal Workers National Pension Fund executed by the
Company on September 6, 1996.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
TENNEY ENGINEERING, INC.
(Registrant)
By: S/ Martin Pelman
Name: Martin Pelman
Title: Vice-President, Finance/
Treasurer
(Principal Financial
Officer)
Dated: September 6, 1996
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is made by and between the Sheet
Metal Workers' National Pension Fund ("Fund"), Tenney Engineering, Inc., TNY
Corp., Tenney Environmental Products, Inc., WesTenn Sales, Inc., VacTenn,
Inc., and DynaTenn, Inc., d/b/a DynaVac (collectively, "Tenney Controlled
Group" or the "Group").
WHEREAS, the Fund is a multiemployer pension plan covered by Title IV of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"); and
WHEREAS, Tenney Engineering, Inc. is a former contributing employer to the
Fund; and
WHEREAS, the Fund has alleged that Tenney Engineering, Inc., TNY Corp.,
Tenney Environmental Products, Inc., WesTenn Sales, Inc., VacTenn, Inc., and
DynaTenn, Inc. d/b/a DynaVac are a group of trades or business under common
control and constitute a single employer for purposes of Title IV of ERISA;
and,
WHEREAS, the Fund has issued a revised assessment and demand to the Tenney
Controlled Group for withdrawal liability in the amount of $502,665.64 as a
result of an alleged complete withdrawal by the Tenney Controlled Group in
February, 1993 (the "Withdrawal Assessment"); and,
WHEREAS, the Fund filed an action in the United States District Court for
the Eastern District of Virginia, Alexandria Division, styled Board of
Trustees, Sheet Metal Workers' National Pension Fund v. Tenney Engineering,
Inc., et al., No. 95-1609-A ("Legal Action") seeking payment of the
Withdrawal Assessment; and,
WHEREAS, Tenney Engineering, Inc. filed an arbitration demand with the
American Arbitration Association, styled Sheet Metal Workers' National
Pension Fund and Tenney Engineering, Inc., ("Arbitration Action") seeking to
challenge the Fund's Withdrawal Assessment; and,
WHEREAS, Tenney Engineering, Inc. withdrew its request for arbitration; and,
WHEREAS, the Fund and the Tenney Controlled Group now wish to compromise
and settle all claims for withdrawal liability that the Fund may have
against the Tenney Controlled Group as a result of the above-described
Withdrawal Assessment.
NOW THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties agree as follows:
1. The Tenney Controlled Group agrees to pay the Fund the amount of
$720,090.49 (the "Settled Amount") in settlement of the Legal Action. If,
however, the Tenney Controlled Group pays the Fund $397,330 in accordance
with the terms, conditions and schedule set out in paragraph 2, the Fund
will forgive the remaining Settled Amount and the Tenney Controlled Group's
payment obligations under this Agreement will be deemed fully discharged.
If, however, the Tenney Controlled Group fails to make any payment set out in
paragraph 2, the Fund shall be entitled to collect the entire ammount as set
out in paragraphs 12 and 17.
2. The Tenney Controlled Group agrees to pay the Fund $75,000.00 by
certified check, cashier's check, or by wire transfer on or before September
13, 1996 and to make monthly payments of $6,613.09 for five (5) full years
pursuant to the attached schedule beginning with the first monthly payment
on October 1, 1996, such monthly payments to be made by certified check,
cashier's check, or by wire transfer payable to the Fund with each payment
due on the first of each month. (The payment schedule is attached to and
made a part of this Agreement as Exhibit A).
3. The Tenney Controlled Group acknowledges and agrees that by entering
into this Agreement it releases any right, title, or interest it has to the
funds paid in satisfaction of the Withdrawal Assessment and further releases
all claims it has for refund of any of the payments described in paragraph 2
above.
4. The Fund agrees that complete and timely receipt of all of the payments
referenced in paragraph 2 of this Agreement shall result in the forgiveness
of the remaining Settled Amount set out in paragraph 1 and shall fully
satisfy any and all claims for withdrawal liability that the Fund or anyone
acting through or on behalf of the Fund has or may have against the Tenney
Controlled Group as a result of the above-described Withdrawal Assessment;
provided however that this Agreement shall not preclude any claims against
the Tenney Controlled Group or others for withdrawal liability if it is
determined that the warranties contained in paragraphs 5 through 7 below are
breached or that the representations contained in paragraphs 5 through 7
below are false. Notwithstanding the foregoing, the parties agree that the
releases given by this paragraph will not become effective until the date 91
days after the date on which the last monthly payment check referred to in
paragraph 2 has been honored, or wire transfer has been effected.
5. The Tenney Controlled Group warrants and represents to the Fund that on
the date of withdrawal, February, 1993, there were no other trades or
businesses under common control with it within the meaning of 29 U.S.C.
(1301(b), that were ever obligated at any time to contribute to the Fund.
6. The Tenney Controlled Group warrants and represents to the Fund that
neither it nor any trades or businesses under common control with it (as
defined in 29 U.S.C. (1301(b)(1) have under reported or understated their
obligation to make contributions and report contribution base units of the
employer (as that term is defined in 29 U.S.C. (1301(b)(1) to the Fund.
7. The Tenney Controlled Group warrants and represents to the Fund that all
documentation concerning its financial condition heretofore provided by it
or its agents to the Fund to enable the Fund to evaluate this Agreement is
true and accurate.
8. If any of the warranties in paragraphs 5 through 7 above are breached
or if any of the representations in paragraphs 5 through 7 above are false,
then the Fund shall have the immediate right to execute on the judgment
provided for in paragraph 17 to recover the full Settled Amount, which
includes the total Withdrawal Assessment and any and all applicable damages
pursuant to 29 U.S.C. (1132(g)(2) against the Tenney Controlled Group and to
bring an action against any and all trades or businesses under common control
with the Tenney Controlled Group on the date of withdrawal.
9. The Legal Action shall be dismissed without prejudice after execution of
this Agreement, payment of the $75,000.00 sum referenced in paragraph 2
above, and execution of the judgment referred to in paragraph 17 by the
parties.
10. The Tenney Controlled Group agrees to dismiss the Arbitration Action
with prejudice between itself and the Fund after execution of this Agreement
and the Tenney Controlled Group agrees to waive any right to arbitration
between itself and the Fund pursuant to 29 U.S.C. (1401, concerning the
above-described Withdrawal Assessment.
11. If any member of the Tenney Controlled Group or any entity under
common control with the Tenney Controlled Group as of February, 1993, files
a petition for bankruptcy protection under any chapter of the United States
Bankruptcy Code, or an involuntary petition is filed against any one or more
of them and an order allowing the petition is entered by the court, or an
assignment for the benefit of creditors is made by any one of them after any
payment referenced in paragraph 2 above, and as a result of such bankruptcy
proceeding or assignment all or a portion of the amount paid under paragraph
2 is claimed by, recovered by, or ordered to be paid over to any bankruptcy
trustee, bankruptcy estate, or other party, then the covenants, terms and
provisions of this Agreement, and the dismissal of the Legal Action shall
immediately be deemed to be inoperative and null and void to the extent they
compromise or reduce the Fund's claims for collection of the Withdrawal
Assessment and any applicable damages pursuant to 29 U.S.C. (1132(g)(2).
Additionally, in the event of a voluntary bankruptcy proceeding, involuntary
bankruptcy petition and an order allowing the petition is entered by the
court, or assignment for the benefit of creditors, the Fund shall be entitled
to enforce the judgment referred to in paragraph 17 against the Tenney
Controlled Group or others to collect the balance due under such judgment
without regard to any releases provided in this Agreement and the Tenney
Controlled Group shall be liable for the immediate payment of the entire
unsatisfied Settled Amount, which includes the Withdrawal Assessment,
interest on the Withdrawal Assessment, the greater of liquidated damages or
interest or on the assessment, attorney's fees and costs.
12. If for any reason the Fund does not receive a payment on or before
the date it is due, it shall constitute a material breach of this Agreement.
The amounts of such payments are set forth in the attached payment schedule
(Exhibit A). In the event of a material breach, the Fund shall be entitled
to enforce the judgment referred to in paragraph 17 against the Tenney
Controlled Group and to bring an action against others to collect the balance
due under the Withdrawal Assessment without regard to any contingent
releases provided in this Agreement and the Tenney Controlled Group shall be
liable for, by way of the judgment, the immediate payment of the entire
unsatisfied Settled Amount, which includes the Withdrawal Assessment,
interest on the Withdrawal Assessment, the greater of liquidated damages or
interest on the assessment, attorney's fees, and costs. In the alternative,
the Fund may, in its sole discretion, file an action or assert a claim
against the Tenney Controlled Group for breach of this Agreement.
13. It is specifically understood by and between the parties hereto that
the acceptance of any payment required under this Agreement by the Fund
after the time when it becomes due, as herein set forth, shall not be held
to establish a custom or waive any right of the Fund to enforce payment of
any remaining installment herein.
14. There shall be no pre-payment penalty assessed against the Tenney
Controlled Group if it pre-pays any payment.
15. Payment under this Agreement may be extended or modified by mutual
consent without affecting the liability of the Tenney Controlled Group
hereunder.
16. This Agreement does not preclude, determine, or concede any claims the
Fund may have against the Tenney Controlled Group or others for future
withdrawal liability assessments or contribution delinquency should any
member of the Tenney Controlled Group become obligated to contribute to the
Fund as a result of an event which occurs after execution of this Agreement.
17. Simultaneously with the execution of this Settlement Agreement, the
Tenney Controlled Group shall execute a consent judgment, in the form
annexed hereto as Exhibit B, by which each member of the Group will become
jointly and severally liable to the Fund for the full Settled Amount, which
includes the total Withdrawal Assessment and all applicable damages pursuant
to 29 U.S.C. (1132(g)(2). The consent judgment may be entered at any time
by the Fund against the Group in any State or Federal Court in the event:
(1) the warranties in paragraphs 5 through 7 above are breached, (2) the
representations in paragraphs 5 through 7 above are false, (3) the Fund does
not receive a payment on or before the date it is due, (4) any or all members
of the Tenney Controlled Group file(s) a petition for bankruptcy protection
under any chapter of the United States Bankruptcy Code, (5) an involuntary
bankruptcy petition is filed against any or all members of the Tenney
Controlled Group, or (6) any or all members of the Tenney Controlled Group
files an assignment for the benefit of creditors. In the event of a
bankruptcy filing, the Tenney Controlled Group agrees to waive any rights or
defenses it may have under 29 U.S.C. (1405(b) and agrees further to allow
the Fund's claim for the Settled Amount in full less any payments already
made, credited first to the aggregate of interest, liquidated damages, costs
and attorney's fees, and then toward any remaining principal amount.
18. In the event that there is a material breach of this Agreement and
the Fund brings an action as a result of that breach, and/or the Fund brings
an action and/or seeks to enforce the judgment as specifically set out in
paragraphs 8, 12 and/or 17, the Tenney Controlled Group and any trades or
businesses under common control with the Tenney Controlled Group on the date
of withdrawal agree to waive their rights to assert any claim or defense of
statute of limitations, estoppel, waiver, and/or laches to such an action.
The Fund, and the Tenney Controlled Group on behalf of itself and all trades
or businesses under common control with it on the date of withdrawal, hereby
agree to toll the applicable statute of limitations for the collection of the
Withdrawal Assessment and all applicable damages during the pendency of the
payment period described in paragraph 2 above and referenced in Exhibit A
attached hereto.
19. The Tenney Controlled Group shall not be entitled to a refund of
amounts paid to the Fund hereunder and the Tenney Controlled Group waives
its right to assert a refund claim in any future collection action.
20. Each of the foregoing recitals are hereby incorporated into and made a
part of this Settlement Agreement.
21. If any provision in this Agreement is held by any court to be invalid
or otherwise without effect, the remaining provisions of this Agreement will
remain in full force and effect.
22. In the event that any or all members of the Tenney Controlled Group
file a petition for bankruptcy protection under any chapter of the United
States Bankruptcy Code or an involuntary bankruptcy petition is filed
against any one or more of them and an order allowing the petition is
entered by the court, then any and all members of the Tenney Controlled
Group agree not to oppose and to consent to the Fund seeking relief from the
automatic stay for purposes of entering the judgment referenced in paragr
IN WITNESS WHEREOF, the Trustees of the Fund have caused this Agreement to
be executed in the name of the Fund by its duly authorized administrator and
each member of the Tenney Controlled Group has caused this Agreement to be
executed by its duly authorized officer.
SHEET METAL WORKERS'
ATTEST: NATIONAL PENSION FUND
BY:
DATED: TITLE:
ATTEST: TENNEY ENGINEERING, INC.
BY:
DATED: TITLE:
ATTEST: TNY CORP.
BY:
DATED: TITLE:
ATTEST: TENNEY ENVIRONMENTAL PRODUCTS, INC.
BY:
DATED: TITLE:
ATTEST: WESTENN SALES, INC.
BY:
DATED: TITLE:
ATTEST: VACTENN, INC.
BY:
DATED: TITLE:
ATTEST: DYNATENN, INC.
d/b/a DYNAVAC
BY:
DATED: TITLE:
EXHIBIT A
TENNEY ENGINEERING, INC.
AMORTIZATION OF AMOUNT TO BE PAID UNDER PARAGRAPH 2
Principal
Principal Interest Remaining
Year 1
Month 1 $4,329.92 $2,283.17 $318,000.08
Month 2 $4,360.59 $2,252.50 $313,639.48
Month 3 $4,391.48 $2,221.61 $309,248.00
Month 4 $4,422.59 $2,190.51 $304,825.42
Month 5 $4,453.91 $2,159.18 $300,371.50
Month 6 $4,485.46 $2,127.63 $295,886.04
Month 7 $4,517.23 $2,095.86 $291,368.81
Month 8 $4,549.23 $2,063.86 $286,819.58
Month 9 $4,581.45 $2,031.64 $282,238.12
Month 10 $4,613.91 $1,999.19 $277,624.21
Month 11 $4,646.59 $1,966.50 $272,977.63
Month 12 $4,679.50 $1,933.59 $268,298.12
Year 2
Month 13 $4,712.65 $1,900.45 $263,585.48
Month 14 $4,746.03 $1,867.06 $258,839.45
Month 15 $4,779.65 $1,833.45 $254,059.80
Month 16 $4,813.50 $1,799.59 $249,246.29
Month 17 $4,847.60 $1,765.49 $244,398.70
Month 18 $4,881.94 $1,731.16 $239,516.76
Month 19 $4,916.52 $1,696.58 $234,600.24
Month 20 $4,951.34 $1,661.75 $229,648,90
Month 21 $4,986.41 $1,626.68 $224,662.49
Month 22 $5,021.73 $1,591.36 $219,640.75
Month 23 $5,057.30 $1,555.79 $214,583.45
Month 24 $5,093.13 $1,519.97 $209,490.32
Year 3
Month 25 $5,129.20 $1,483.89 $204,361.12
Month 26 $5,165.54 $1,447.56 $199,195.58
Month 27 $5,202.12 $1,410.97 $193,993.46
Month 28 $5,238.97 $1,374.12 $188,754.48
Month 29 $5,276.08 $1,337.01 $183,478.40
Month 30 $5,313.45 $1,299.64 $178,164.95
Month 31 $5,351.09 $1,262.00 $172,813.85
Month 32 $5,389.00 $1,224.10 $167,424.86
Month 33 $5,427.17 $1,185.93 $161,997.69
Month 34 $5,465.61 $1,147.48 $156,532.08
Month 35 $5,504.32 $1,108.77 $151,027.76
Month 36 $5,543.31 $1,069.78 $145,484.44
Year 4
Month 37 $5,582.58 $1,030.51 $139,901.86
Month 38 $5,622.12 $990.97 $134,279.74
Month 39 $5,661.95 $951.15 $128,617.80
Month 40 $5,702.05 $911.04 $122,915.75
Month 41 $5,742.44 $870.65 $117,173.31
Month 42 $5,783.12 $829.98 $111,390.19
Month 43 $5,824.08 $789.01 $105,566.11
Month 44 $5,865.33 $747.76 $99,700.78
Month 45 $5,906.88 $706.21 $93,793.90
Month 46 $5,948.72 $664.37 $87,845.18
Month 47 $5,990.86 $622.24 $81,854.32
Month 48 $6,033.29 $579.80 $75,821.03
Year 5
Month 49 $6,076.03 $537.07 $69,745.00
Month 50 $6,119.07 $494.03 $63,625.93
Month 51 $6,162.41 $450.68 $57,463.52
Month 52 $6,206.06 $407.03 $51,257.46
Month 53 $6,250.02 $363.07 $45,007.44
Month 54 $6,294.29 $318.80 $38,713.15
Month 55 $6,338.88 $274.22 $32,374.28
Month 56 $6,383.78 $229.32 $25,990.50
Month 57 $6,428.99 $184.10 $19,561.51
Month 58 $6,474.53 $138.56 $13,086.97
Month 59 $6,520.39 $92.70 $6,566.58
Month 60 $6,566.58 $46.51 $0.00
$397,330.00 Total Principal Amount
$75,000.00 Immediate Payment
8.50% Interest
5 Term
$6,613.09 Payment
EXHIBIT B
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
BOARD OF TRUSTEES,
SHEET METAL WORKERS NATIONAL
PENSION FUND,
Civil Action No.
Plaintiff
v.
TENNEY ENGINEERING, INC.
TNY CORP., TENNEY
ENVIRONMENTAL PRODUCTS, INC.
WESTENN SALES, INC.
VACTENN, INC.
and
DYNATENN, INC., d/b/a DYNAVAC,)
Defendants.
CONSENT JUDGMENT
The Plaintiff and Defendants have reached agreement on the validity of
Plaintiffs' claim and Defendants' defenses and have consented to the entry
of the following consent judgment without trial based upon the following
findings of fact and conclusion of law. The court has considered the matter
and has been duly advised in the premises.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Plaintiff is comprised of individual Trustees who are "fiduciaries"
with respect to the Sheet Metal Workers' National Pension Fund ("Fund")
under ( 3(21)(A) of ERISA, 29 U.S.C. (( 1002(21)(A).
2. Plaintiff is the "plan sponsor" within the meaning of (( 3(16)(B)(iii)
and 4001(a)(10)(A) of ERISA, 29 U.S.C. (( 1002(16)(B)(III) and 1301(a)(10)(A).
3. The Fund is a jointly administered trust fund created and maintained
pursuant to ( 302(c) of the Labor Management Relations Act, 29 U.S.C. ( 186
(c), a "multiemployer plan" as defined under (( 3(37) and 4001(a)(3) of
ERISA, 29 U.S.C. (( 1002(37) and 1301(a)(3), and an "employee benefit
pension plan" as defined under ( 3(2) of ERISA, 29 U.S.C. ( 1002(2).
4. The Trustees administer the Fund at its principal place of business,
601 North Fairfax Street, Alexandria, Virginia 22314.
5. The Trustees are authorized to bring civil actions on behalf of the
Fund, its participants, and beneficiaries for the purpose of collecting
withdrawal liability pursuant to (( 502(a)(3) and 4301(a)(1) of ERISA, 29
U.S.C. (( 1132(a)(3) and 1451(a)(1).
6. This court has jurisdiction over this action under (( 502(e), 502(f),
and 4301(c) of ERISA, 29 U.S.C. (( 1132(e), 1132(f), and 1451(c). This
court has personal jurisdiction over the Defendants.
7. Venue is proper in the Eastern District of Virginia, Alexandria
Division under (( 502(e)(2) and 4301(d) of ERISA, 29 U.S.C. (( 1132(e)(2)
and 1451(d) because the Fund is administered at its principal place of
business in Alexandria, Virginia.
8. On February 16, 1993, Defendant Tenney Engineering, Inc. ("Tenney") was
a New Jersey corporation.
9. On February 16, 1993, Defendant TNY Corp. ("TNY") was a New Jersey
corporation.
10. On February 16, 1993, Defendant Tenney Environmental Products, Inc.
("Tenney Environmental") was a New Jersey corporation.
11. On February 16, 1993, Defendant Westenn Sales, Inc. ("Westenn") was a
New Jersey corporation.
12. On February 16, 1993, Defendant Vactenn, Inc. ("Vactenn") was a
California corporation.
13. On February 16, 1993, Defendant Dynatenn, Inc. d/b/a Dynavac
("Dynavac") was a Massachusetts corporation.
14. On February 16, 1993, TNY, Tenney Environmental, Westenn, Vactenn, and
Dynavac were wholly owned subsidiaries of Tenney.
15. On February 16, 1993, Tenney owned 100% of the voting stock of TNY,
Tenney Environmental, Westenn, Vactenn, and Dynavac, and thus had a
controlling interest in and effective control of those companies.
16. Tenney, TNY, Tenney Environmental, Westenn, Vactenn, and Dynavac and
all other trades or businesses under common control with them (the "TENNEY
CONTROLLED GROUP") constitute a single employer within the meaning of
( 4001(b)(1) of ERISA, 29 U.S.C. ( 1301(b)(1), and the regulations
promulgated thereunder.
17. The TENNEY CONTROLLED GROUP is the employer for purposes of the
determination and assessment of withdrawal liability under Title IV of ERISA.
18. Tenney, a member of the TENNEY CONTROLLED GROUP, was subject to a
collective bargaining agreement, executed between itself and Sheet Metal
Workers' International Association Local Union No. 28, under which is was
obligated to make contributions to the Fund on behalf of certain employees.
19. The Fund has determined that on or about February 16, 1993, Tenney
permanently ceased to have an obligation to contribute to the Fund under its
collective bargaining agreement, and thereafter no member of the TENNEY
CONTROLLED GROUP was contributing or was obligated to contribute to the Fund.
20. The Fund has determined that the TENNEY CONTROLLED GROUP effected a
"complete withdrawal" from the Fund within the meaning of ( 4203 of ERISA,
29 U.S.C. ( 1383.
21. As a result of this complete withdrawal, all entities constituting the
TENNEY CONTROLLED GROUP, including Defendants, incurred withdrawal liability
to the Fund in the amount of $529,743.28, as determined under ( 4201(b) of
ERISA, 29 U.S.C. ( 1381(b).
22. On or about November 19, 1993, the TENNEY CONTROLLED GROUP, through
Tenney, received a notice and demand for payment of the withdrawal liability
assessment. The notice was issued by the Fund in accordance with (( 4202(2)
and 4219(b)(1) of ERISA, 29 U.S.C. ( 1382(2) and 1399(b)(1). The notice and
attached calculation notified the employer that it was required to discharge
its liability in quarterly payments of $33,879.28.
23. The Fund subsequently revised the employer's withdrawal liability
assessment to $502,665.64 and notified the employer, through Tenney, by
letter dated December 5, 1994.
24. On or about March 18, 1994, the TENNEY CONTROLLED GROUP, through
Tenney, receive a notice from the Fund, pursuant to ( 4219(c)(5)(A) of ERISA,
29 U.S.C. ( 139(c)(5)(A), that payment of its withdrawal liability was past
due and which forewarned the employer of the consequences of its failure to
pay such liability.
25. By letter dated February 17, 1994, the TENNEY CONTROLLED GROUP,
through Tenney, requested that the Fund review the withdrawal liability
assessment, pursuant to ( 4219(b)(2)(A) of ERISA, 29 U.S.C. ( 1399(b)(2)(A).
26. On or about July 21, 1994, the TENNEY CONTROLLED GROUP, through Tenney,
received the Fund's response to the review request in which the Fund
rejected each issue raised by the employer and affirmed the withdrawal
liability assessment.
27. By letter dated May 19, 1994, the TENNEY CONTROLLED GROUP, through
Tenney, sent a Notice of Initiation of Arbitration to the Fund pursuant to
( 4221(a)(1) of ERISA, 29 U.S.C. ( 1401(a)(1).
28. By letter dated August 3, 1994 to the American Arbitration Association
("AAA"), the TENNEY CONTROLLED GROUP, through Tenney, submitted its request
for arbitration pursuant to Amendment No. 1 of the Sheet Metal Workers'
National Pension Fund Amended and Restated Agreement and Declaration of
Trust dated September 22, 1993.
29. By letter dated August 24, 1994 to Donna Sanker of AAA, the TENNEY
CONTROLLED GROUP, through Tenney, withdrew its request for arbitration.
30. By letter dated August 25, 1994, Donna Sanker of AAA acknowledged
receipt of the employer's August 24, 1994 letter advising AAA that it was
withdrawing its request for arbitration Ms. Sanker requested the employer
to advise AAA to the contrary before September 6, 1994, otherwise AAA would
honor the employer's request that the demand for arbitration be withdrawn
and would close its file.
31. No other member of the TENNEY CONTROLLED GROUP initiated arbitration
pursuant to ( 4221(a)(1) of ERISA, 29 U.S.C. ( 1401(a)(1); consequently,
Defendants have waived any right to arbitration and forfeited any defenses
to the withdrawal liability assessment. The amounts demanded by the Fund
are due and owing pursuant to ( 4221(b)(1) of ERISA, 29 U.S.C. ( 1401(b)(1).
32. The members of the TENNEY CONTROLLED GROUP, including Defendants, have
failed to make the withdrawal liability payments to the Fund and they are in
default within the meaning of ( 4219 (c)(5) of ERISA, 29 U.S.C. ( 1399(c)(5)
for the full amount of the withdrawal liability assessment and Plaintiff is
entitled to the following relief pursuant to 29 U.S.C. ( 1132(g)(2):
Principal - $502,665.65
Interest - $105,962.42
29 U.S.C. ( 1132(g)(2)(C)(i)
Interest - $105,962.42
Attorney's
fees - $ 5,000.00
Costs - $ 500.00
Total - $720,090.49
33. The members of the TENNEY CONTROLLED GROUP, including Defendants, are
jointly and severally liable to the Fund for the withdrawal liability and
damages due above.
THEREFORE IT IS ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:
That a judgment is entered for the Plaintiff and against the Defendants in
the amount of $720,090.49.
The above is agreed to between the parties, who agree as to both its form
and content.
Consented to and Consented to and
Approved by Plaintiff: Approved by Defendants:
Board of Trustees, Tenney Engineering, Inc.
Sheet Metal Workers'
National Pension Fund
Counsel for Plaintiff TNY Corp.
Tenney Environmental Products, Inc.
WesTenn Sales, Inc.
VacTenn, Inc.
DynaTenn, Inc.
d/b/a DynaVac
Counsel for Defendant
SO ORDERED:
Entered:
United States District Judge
Dated:
1
